Sparks v. Moore

Full title: KEN STUART SPARKS, Petitioner, v. S.R. MOORE, Warden, et al., Respondents

Court: United States District Court, E.D. California

Date published: Aug 23, 2006

No. CIV S-06-0334 MCE-CMK-P (E.D. Cal. Aug. 23, 2006)

Opinion

No. CIV S-06-0334 MCE-CMK-P.

August 23, 2006

ORDER

CRAIG KELLISON, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents' motion to dismiss (Doc. 23), filed on March 27, 2006.

Respondents contend that petitioner has no federally protected liberty interest in parole under California law. To support that contention, respondents rely on an order of a district judge of this court in Sass v. California Board of Prison Terms, 376 F. Supp. 2d 975 (E.D. Cal. 2005). The Sass case is under submission in the United States Court of Appeals for the Ninth Circuit following oral argument on March 16, 2006. Good cause appearing therefor, respondent's motion will be denied without prejudice to its renewal, as appropriate, not later than thirty days after any decision by the Court of Appeals in Sass.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondents' motion to dismiss (Doc. 7) is denied without prejudice;

2. Within thirty days from the date of a decision by the United States Court of Appeals for the Ninth Circuit in Sass v. California Board of Prison Terms, 376 F. Supp. 2d 975 (E.D. Cal. 2005), respondents shall file, as appropriate, either a renewed motion to dismiss or an answer to the petition;

3. If respondents file an answer, respondents shall include with the answer any and all transcripts or other documents relevant to the determination of the issues presented in the application, see Rule 5, Rules Governing Section 2254 Cases, and petitioner's traverse, if any, shall be filed and served within thirty days after service of the answer;

4. If respondents file a renewed motion to dismiss, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter; and

5. Within 60 days of the date of service of this order, the parties are directed to file separate reports on the status of this case, addressing in particular any issues the parties wish to bring to the attention of the court with respect to resolving the instant petition.